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2018 DIGILAW 136 (JK)

Mohammad Yousuf Koka v. State of J&K

2018-03-06

M.K.HANJURA

body2018
ORDER : M.K. Hanjura, J. 1. The pith and core of the petition of the petitioners herein this petition is that their father was an estate holder of village Imam Sahab Kadgam. He was in possession of the land measuring 4 kanals and 17 marlas bearing Survey No. 142 situated in the same village. The kind of the soil of this land was recorded as "Shamilat" on prorate basis. The respondents at the back of the father of the petitioners managed to change the kind of the soil of the land in the Revenue entries to that of "Mehfooz Kahcharai". This action of the respondents was resisted and challenged by their father and ultimately the matter was settled amicably. In terms of the settlement the father of the petitioners offered in exchange his proprietary land in lieu of the occupation of the aforesaid land. However, the respondent No. 6 with an evil motive and in order to divest and deprive the petitioners from the aforesaid land filed an application in the year 2007 for the allotment of the said land for the establishment of a Sumo Stand. 2. The respondent No. 4 on the representation of the petitioners rejected the claim of the respondent No. 6. Respondent No. 6 yet again in the year 2012 filed an application on the same set of facts as pleaded in the year 2007. Respondent No. 4 without going through the text and the contents of the record relating to the land allotted a patch of land measuring one kanal to the respondent No. 6 out of survey No. 142 which constrained the petitioners to approach the respondent No. 3. The respondent No. 3 acknowledged the claim of the petitioners by passing an order in their favour. However, the said order was set aside by this Court on the ground that the respondent No. 6 has not been given an opportunity of being heard. 3. In furtherance of the said order of the High Court, the Divisional Commissioner, Kashmir, was in law obliged to ascertain whether the kind of soil in question is "Mehfooz Kahcharai" or "Shamilat". However, to the dismay of the petitioners the respondent No. 3 without making a proper enquiry viz-a-viz the nature of the land passed an order which is bad in law and is impugned herein this petition. 4. In their objections respondent Nos. However, to the dismay of the petitioners the respondent No. 3 without making a proper enquiry viz-a-viz the nature of the land passed an order which is bad in law and is impugned herein this petition. 4. In their objections respondent Nos. 1 to 5 have resisted the pleadings of the petitioners on the grounds that the order of the Divisional Commissioner, Kashmir, dated 24.12.2012 was challenged before the Hon'ble Court in OWP No. 298/2013 titled M/s. Al-Mustafa Sumo Motor Transport & Ors Vs. State & Ors. The Hon'ble Court vide order dated 27.12.2013 set aside the said order of Divisional Commissioner Kashmir dated 24.12.2012 with a further direction to the Divisional Commissioner, Kashmir, to pass fresh orders after hearing the parties, in pursuance of which the Divisional Commissioner, Kashmir, by his order dated 05.2.2014 directed the Tehsildar Shopian to remove the encroachment made on "Kahcharie land" and to restore the status of the said "Kahcharie land" to the position as it existed prior to the encroachment. The petitioners Mohammad Yousuf Koka and others filed a writ petition before the Hon'ble High Court for seeking quashment of the said order of Divisional Commissioner Kashmir dated 05.02.2014 with a further prayer not to evict and disturb the possession of the petitioners from the land measuring 04 kanals and 17 marlas under Khasra No. 142 min, situated at village Kadgam, Imam Sahib, Shopian. It is further submitted that the petitioners on the one hand did not part with the land bearing Khasra No. 208/137, which they offered in exchange of the land, that is, the subject matter of the writ petition but it continues to be in possession of their cousins and on the other hand they have encroached upon the land recorded as "Kahcharie" covered under Khasra No. 142 min. 5. In the objections, respondent No. 6 has resisted the pleadings of the petitioners chiefly on the grounds that the answering respondent being a registered motor transport undertaking, in terms of certificate of registration bearing No. 66-MTWS-Pul-C5/31-Shopian, a copy whereof is attached to the reply as Annexure R1 issued by labour Department of J & K, came to be allotted a parking place and halting station after considering the representation submitted by the answering respondent and obtaining report thereupon from all concerned including the Assistant Regional Transport Officer. The allotment was made in favour of the answering respondent vide allotment order No. DMS/12/838 Dated 19.05.2012. The said allotment order, however, came to be questioned by the petitioners herein before respondent No. 3 and same was set aside in terms of order dated 24.12.2012 without hearing the answering respondent at the back of answering respondent. Aggrieved of the aforesaid order of respondent No. 3 dated 24.12.2012, the answering respondent questioned the same before this Hon'ble Court by medium of writ petition (OWP) No. 298/2013, inter-alia, amongst others on the ground that the same had been passed at his back and without hearing him, which writ petition came to be finally disposed of on 27.12.2013 whereby order dated 24.12.2012 of respondent No. 3 came to be set aside, inasmuch as requiring the respondent No. 3 to pass fresh orders after hearing the parties. The respondent No. 3 thereafter in terms of order dated 05.02.2014 while considering the matter directed Tehsildar, Shopian to remove the entire encroachment made on Kahcharie land prior to its encroachment. The order under challenge in the writ petition would manifestly suggest that the petitioners are encroachers of Kahcharie land in question and have erected unauthorized and illegal shops thereupon. The respondent No. 3 while setting aside the order of allotment of answering respondent also sought eviction of the petitioners from the Kahcharie land in tune with the judgment passed by the Hon'ble Supreme Court in AIR 2011 SC 1123 . The contention of the petitioners that they continue to be in possession of the land in question does not clothe them with any right, much less one recognized under law to occupy, enjoy and possess the Kahcharie land. 6. Heard and considered. 7. The mute question that arises for consideration herein this petition is whether the impugned order dated 05.02.2014 passed by the learned Divisional Commissioner Kashmir, Srinagar, can sustain the scrutiny of law. 8. Before looking into the contents and the details of the said order, it needs must be said that the respondents herein this petition filed a petition bearing OWP No. 296/2013 before this Court which came to be decided by an order dated 27th of December 2013 of this Court by directing that the order dated 24.12.2012 passed by the Divisional Commissioner Kashmir, in case titled "Mohammad Yousuf Koka Vs. State of JK & Ors" is set aside and the parties shall appear before the Divisional Commissioner Kashmir on 06th of June 2014 in person or through their counsel. The order further directed that the Divisional Commissioner, Kashmir, shall pass fresh orders after hearing the parties and till further orders are passed status-quo as on date be maintained. 9. The source of the order dated 05.02.2014 of the Ld. Divisional Commissioner, impugned herein this petition is the order passed by the Writ Court incorporating the aforesaid directions and the relevant extracts thereof which are germane in the context of the decision of the instant petition are detailed below word for word and letter for letter:- The Tehsildar concerned attended this court personally on 05.02.2014 along with the requisite report. Heard the applicants and counsel for respondent No. 3 at length and gone through the records available on the file. Perusal of the report submitted by the Tehsildar concerned reveals that 81 illegal encroachers have encroached upon land measuring 210 kanals and 12 marlas comprising Khasra No. 142 (13 kanals 19 marlas), 165/5 (7 marlas), 200/137 (100 kanals 13 marlas), 233/5 (19 marlas) and 166/5 (94 kanals 14 marlas) situated at village Kadgam Tehsil & District Shopian which is recorded as "Shamilat Mehfooz Kahcharie" in the revenue records. From the said land, land measuring 01 kanal and 4 marlas comprising survey No. 142, which has been illegally encroached upon by the above named petitioners, has been allotted to Al Mustafa Sumo Stand, Imam Sahib Kadgam, Shopian. Further the report reveals that the land measuring 04 kanals and 17 marlas comprising Khasra No. 142 min situated at village Kadgam has also been illegally encroached upon by one Sona Koka (father of Mohammad Yousuf Koka, Ghulam Rasool Koka and Mohammad Ramzan Koka) and has been mutated in his favour vide mutation No. 297 in exchange against same quantum of land measuring comprising of Khasra No. 203/137 (Shamilat Section 5) which subsequently stands rejected by restoring the previous position in terms of Deputy Commissioner, Shopian's Order No. DCS/Court/12/09-11 dated 09.05.2013. The petitioners on the one hand have not parted away with the land they have exchanged but it continues to be in their possession and on the other hand they have encroached upon the land they have exchanged with. Thus, the petitioners continue to be in possession of both patches of land. The petitioners on the one hand have not parted away with the land they have exchanged but it continues to be in their possession and on the other hand they have encroached upon the land they have exchanged with. Thus, the petitioners continue to be in possession of both patches of land. Since the said patch of land in the revenue record is recorded as Shamilat Mehfooz Kahcharie, District Magistrate is not the competent authority to allot Shamilat land for any purpose. The act has been depreciated by the Hon'ble Apex Court vide its judgment passed in case titled Jagpal Singh & Ors Vs. State of Punjab & Ors (reported in 2011 AIR SC 1123). If the act of District Magistrate Shopian is permitted, it will be clear violation of the law laid down by the Hon'ble Apex Court. Under the circumstances, the order dated 19.05.2012 passed by District Magistrate, Shopian is set aside and Tehsildar concerned is directed to remove the entire encroachment made on Kahcharie land, as per the list submitted him vide No. 930/OQ/Spn dated 01.02.2014, and restore the position of the said Kahcharie land prior to its encroachment. Superintendent of Police, Shopian is directed to provide sufficient police protection during the operation. Status-quo order is vacated. File shall be consigned to records after due completion. 10. The order of the learned Divisional Commissioner, Kashmir, is a sequel to the fact that the petitioners herein this petition and the respondent No. 3 i.e. the respondent No. 6 in this petition were given a fair and a reasonable opportunity of being heard by the said authority in pursuance of the order passed by this court in the earlier petition. It also brings to the fore that the Ld. Divisional Commissioner, scanned and evaluated the record as also the report of the concerned Tehsildar before passing the order impugned. After giving a resume of the list of the encroachments, the learned Divisional Commissioner, Kashmir, has in the order impugned come to the conclusion that the land bearing Survey No. 142 to the extent of 4 kanals and 17 marlas was illegally encroached upon by the father of the petitioners, whereafter it was mutated in his favour vide mutation No. 297 in lieu of the exchange of the land offered by him. This mutation order was subsequently set aside in terms of the order dated DCS/Court/12/09-11 dated 09.05.2013 of the Deputy Commissioner Shopian that directed the restoration of the previous position. He has also held that the petitioners did not part with the land that they offered in exchange and the same continues to be in their possession. 11. As per the Revenue records, the kind of the soil of the land which is the subject matter of the dispute in this petition is "Mehfooz Kacharie", over which the petitioners have no right. Conceding this position the petitioners offered an equivalent patch and area of land in exchange of the occupation of the "Kahcharie land". However, the petitioners wanted to have the cake and eat it too in as much as they did not surrender the possession of the land offered by them in exchange of the "Kahcharie land" as gets revealed from the order impugned. 12. In this view of the matter, there seems to be no error manifest on the face of the order of the learned Divisional Commissioner, Kashmir. Not only this, the learned Divisional Commissioner Kashmir has in the order impugned placed explicit reliance on the law laid down in AIR 2011 Supreme Court 1123, para No. 22 of which assumes significance and it lays down as under:- 22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land. 13. Taking into the consideration the law laid down above buttressed with the fact that the kind of soil of the land on which the petitioners put forth their claim is "Kahcharie land" i.e. land reserved for grazing purposes as also the repetition and reiteration of the contents of the order of Divisional Commissioner, Kashmir, wherein he has held that the petitioners did not surrender the land which they offered in exchange of the land bearing Survey No. 142 situated at village Imam Sahab Kadgam Shopian, the petition of the petitioners cannot survive and is liable to be dismissed. 14. Viewed in the above context the petition of the petitioners is dismissed and the order of the Ld. Divisional Commissioner impugned herein is upheld. There shall be no order as to costs.